[Federal Register Volume 79, Number 241 (Tuesday, December 16, 2014)]
[Notices]
[Pages 74780-74782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-29344]


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POSTAL SERVICE


Exercise of Powers Reserved to the Governors and the Board of 
Governors

AGENCY: Postal Service.

ACTION: Notice of resolutions regarding the absence of a quorum.

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SUMMARY: The Board of Governors of the Postal Service has adopted a 
resolution regarding the exercise of those powers reserved to the Board 
upon the loss of a quorum of the Board. During the time in which the 
Board is unable to form a quorum, those powers needed to provide for 
continuity of operations would be delegated to a Temporary Emergency 
Committee composed of the remaining members of the Board. The Governors 
of the Postal Service have also issued a resolution regarding the 
exercise of the powers vested solely in

[[Page 74781]]

the Governors, as distinguished from the Board of Governors. The 
resolution clarifies that the inability of the Board to constitute a 
quorum does not inhibit or affect the authority of the Governors then 
in office to exercise those powers vested solely in the Governors, upon 
the concurrence of an absolute majority of the Governors then in 
office.

DATES: Effective Date: November 14, 2014.

FOR FURTHER INFORMATION CONTACT: Julie S. Moore, Secretary of the 
Board, U.S. Postal Service, 475 L'Enfant Plaza SW., Washington, DC 
20260-1000. Telephone: (202) 268-4800.

SUPPLEMENTARY INFORMATION:

Overview

    The Board of Governors of the Postal Service has promulgated a 
resolution regarding the exercise of those powers reserved to the Board 
upon the loss of a quorum of the Board. The resolution delegates to a 
Temporary Emergency Committee, consisting of the remaining members of 
the Board, those powers reserved to the Board that are needed to 
provide for continuity of operations during the period of time in which 
the Board is unable to form a quorum. In addition, the Governors of the 
Postal Service have issued a separate resolution regarding the exercise 
of the powers vested solely in the Governors, as distinguished from the 
Board of Governors. The resolution clarifies that the inability of the 
Board to constitute a quorum does not inhibit or affect the authority 
of the Governors then in office to exercise those powers vested solely 
in the Governors. The resolution states that except as otherwise 
provided by statute, the Governors shall exercise those powers vested 
in the Governors upon the concurrence of an absolute majority of 
Governors then in office.

Background

    While the powers of the Postal Service are generally directed by 
the Board of Governors, 39 U.S.C. 202(a)(1), the statute broadly 
authorizes the powers conferred on the Board to be delegated to a 
committee of the Board, or to the Postmaster General, 39 U.S.C. 402. 
Thus, the determination whether authority conferred on the Board by 
statute should be delegated, or should be exercised through the 
mechanism of the full Board, is ultimately made by the Governors. In 
addition, certain other actions are reserved by statute solely to the 
Governors, including the appointment and removal of the Postmaster 
General and the establishment of prices and classifications for postal 
products, 39 U.S.C. 202(c), 404(b), 3632. These authorities demonstrate 
that the Governors, who are principal officers under the Constitution, 
have ``ultimate control and authority'' over the Postal Service. Silver 
v. United States Postal Serv., 951 F.2d 1033 (9th Cir. 1991).
    The statute requires the Board to have a quorum of 6 members in 
order to exercise those powers which have been reserved to the Board 
rather than delegated, 39 U.S.C. 206(c). In anticipation of the 
situation in which the Board is unable to constitute a quorum due to 
the fact that an insufficient number of Governors are in office, the 
Board issued a resolution regarding the continued exercise of those 
powers that are reserved to the Board by its by-laws during a period in 
which it is disabled from assembling a quorum. This resolution was 
approved in a meeting in which a quorum of the Board was present.
    Furthermore, the Governors determined that it was appropriate to 
issue a resolution articulating their position concerning the exercise 
of those powers vested solely in the Governors, as distinguished from 
the Board. The Governors anticipated that questions may be raised as to 
whether the inability of the Board to assemble a quorum affects the 
Governors' ability to exercise those powers.

Powers Reserved to the Board of Governors

    After considering the legal issues involved, including the specific 
statutory structure under which the Postal Service operates, the Board 
has promulgated a resolution that delegates to a Temporary Emergency 
Committee certain powers reserved to the Board by its by-laws during 
any period of time in which vacancies on the Board prevent it from 
assembling a quorum. This delegation would also apply in emergency 
circumstances in which death, incapacity, or disruption of 
transportation or communications reasonably prevent a Board quorum from 
being assembled.
    The Temporary Emergency Committee consists of the remaining members 
of the Board who are able to assemble, and exercises those powers 
reserved to the Board by its by-laws that are necessary to provide for 
continuity of operations. The Temporary Emergency Committee will 
exercise those reserved Board powers necessary for operational 
continuity until such time as sufficient members are available to 
enable a quorum of the Board to convene.

Powers Reserved to the Governors

    After considering the legal issues involved, the Governors have 
issued a resolution that makes two determinations. First, the 
resolution states that the inability of the Board to constitute a 
quorum does not prevent the Governors then in office from exercising 
those powers vested solely in the Governors, as distinguished from the 
Board. Second, the resolution states that, except as otherwise provided 
by statute, the Governors will exercise those powers upon the 
concurrence of an absolute majority of Governors then in office.
    The Governors issued this resolution after considering the plain 
language of the statute. The Governors determined that, with one 
express exception (concerning the removal of the Inspector General), 
there is no requirement that a specific number of Governors be in 
office in order to exercise those powers vested solely in them. Rather, 
the statute generally specifies that there must be the concurrence of 
an absolute majority of the Governors then ``in office'' or ``holding 
office'' in order for the Governors to exercise those powers. See 39 
U.S.C. 205(c)(1) (appointment and removal of Postmaster General); 
3632(a) (establishment of rates and classifications for competitive 
products).
    The Governors also determined that it would raise serious 
constitutional concerns to interpret the statute as preventing the 
exercise of their powers if the Board cannot form a quorum. The powers 
to appoint and remove the Postmaster General, revoke delegated Board 
authority, and make pricing and classification decisions ensure that, 
as principal officers under the Constitution, the Governors have 
``ultimate control and authority'' over the Postal Service, and 
therefore that the Postal Service's governance structure is 
constitutionally sound. Silver, 951 F.2d at 1036-1041. Interpreting the 
statute as imposing implicit limits on the ability of the Governors to 
exercise those powers would be inconsistent with the court's holding. 
Furthermore, such an interpretation would violate separation of powers 
principles. In particular, it would violate Article II of the 
Constitution for the Governors, who are directly accountable to the 
President, to be completely prevented from removing the Postmaster 
General, an inferior officer under the Constitution who exercises 
significant executive authority.
    The statute does not specify a particular requirement regarding the 
exercise of the Governors' authority in

[[Page 74782]]

certain circumstances, including in the establishment of prices and 
classifications for market-dominant products and the revocation of a 
delegation of Board authority. In such circumstances, the Governors 
determined that it was reasonable and appropriate to apply the same 
rule as generally specified by the statute for the exercise of its 
powers: action can be taken with the consent of an absolute majority of 
the Governors then in office.

Stanley F. Mires,
Attorney, Federal Requirements.
[FR Doc. 2014-29344 Filed 12-15-14; 8:45 am]
BILLING CODE 7710-12-P